State v. Pirtle

2011 WI App 89, 799 N.W.2d 492, 334 Wis. 2d 211, 2011 Wisc. App. LEXIS 353
CourtCourt of Appeals of Wisconsin
DecidedMay 10, 2011
DocketNo. 2010AP1363-CR
StatusPublished
Cited by10 cases

This text of 2011 WI App 89 (State v. Pirtle) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Pirtle, 2011 WI App 89, 799 N.W.2d 492, 334 Wis. 2d 211, 2011 Wisc. App. LEXIS 353 (Wis. Ct. App. 2011).

Opinion

FINE, J.

¶ 1. Calvin Jerome Pirtle appeals the judgment entered after a jury found him guilty of first-degree intentional homicide, see Wis. Stat. § 940.01(1)(a), and the order denying his motion for postconviction relief. Pirtle argues that: (1) the initial warrantless search of the house where he lived with his girlfriend was unconstitutional and the trial court should have suppressed the evidence; (2) the trial court should have let him fire his lawyer on the first day of trial; (3) the trial court should not have allowed him to voluntarily leave the courtroom for the first part of the trial; (4) the trial court should have granted his request for a mistrial; (5) he did not voluntarily waive his right to testify; and (6) he should be re-sentenced because the trial court said Pirtle was a "piece of garbage" during sentencing. We affirm.

I.

¶ 2. In September of 2008, Pirtle's girlfriend, Brandy Shields, called 911 after she found blood and a dead body in the basement of her home. Pirtle had been living with Shields "on and off' for three years. When [218]*218police arrived, Shields met Officer Ronald Hayes outside and Hayes "asked [her] for her key to her residence," and if he could "open the door?" Shields answered, "Yeah, here. Come on. Hurry up." Shields was worried because Pirtle was inside with her children. When Hayes entered the home, he saw Pirtle and asked him to wait outside with another officer so that the police could investigate what was going on. Pirtle was taken outside to a police wagon, but was not handcuffed, arrested, or otherwise physically restrained.

¶ 3. As Hayes walked into the home, he saw what he testified was "a large reddish brown substance on the floor," which he thought was blood. He asked Shields "where the basement was," and in it, he found the body of "a black female nude laying head first into [a] garbage can," as well as a driver's license identifying the victim as Yasmine Tatum-Massey. Hayes then "secured the scene" and waited for a detective to arrive.

¶ 4. Detectives Charles Mueller and Michael Braunreiter arrived to investigate. When Mueller saw the body, he asked if the police had consent to search the home. Braunreiter asked Pirtle if he would voluntarily consent to a search. Pirtle said "no." The detectives got a search warrant and then searched the home and collected evidence. They found Pirtle's blood on the victim and his DNA under her fingernails.

¶ 5. The police arrested Pirtle. He then confessed to killing Tatum-Massey and putting her body into the garbage can. Tatum-Massey died from "neck compression due to manual strangulation." Pirtle was charged with first-degree intentional homicide. His lawyer filed several pre-trial motions, including a motion to suppress evidence based on the initial warrantless entry. The trial court denied the motion, ruling that Shields's consent was sufficient.

[219]*219¶ 6. On the first day of trial in February of 2009, Pirtle told the trial court that he wanted a new lawyer. When the trial court denied the request, Pirtle refused to come into the courtroom and missed voir dire and the preliminary jury instructions. The trial court, however, had set up a speaker system so that Pirtle could hear what was happening in the courtroom. After the lunch break on the second day of trial, Pirtle decided to return to the courtroom for the rest of the trial.

¶ 7. During the trial, Pirtle sought a mistrial after the trial court learned that a woman in the hallway who was, as the trial court found, unrelated to the case yelled "innocent innocent" at the jurors who were walking into the courtroom. The trial court held a hearing and determined that only two of the jurors heard the woman. It talked to those jurors individually in chambers and cautioned them that they each should disregard what they heard and not hold it against either side. One of these jurors was struck as an alternate before deliberations.

¶ 8. After the State rested, the trial court discussed on the Record with Pirtle whether he wanted to testify. Pirtle said that he did not want to testify and explained that he did not want to testify because of what he said were "circumstances which are going on with this lawyer," "this electronic device on my leg," and because he claimed that he was moved to a cell without heat. The trial court found that Pirtle waived his right to testify, and that even though Pirtle listed "preconditions," "he's making that choice freely, voluntarily and intelligently based on everything that's gone on here." As noted, the jury found Pirtle guilty.

¶ 9. At sentencing, all parties, including the defendant, were given a chance to speak. Then, the trial court began its sentencing analysis. Pirtle, however, [220]*220interrupted when the trial court said that Pirtle's 2007 arrest for second-degree sexual assault "sounds very similar to the set of circumstances that happened here":

THE DEFENDANT: So you are biased? Your opinion is biased is what I said.
THE COURT: I call them as I see them, Mr. Pirtle.
THE DEFENDANT: Just don't call me late for dinner.
THE COURT: No. I'll call you a piece of garbage.
THE DEFENDANT: I'll do the same with you. Just so you know, because there's been a whole bunch of judiciary misconduct going on also on your behalf. There was things that was going on during the trial that you should have been aware of and made a statement to, saying something about the State. It's your obligation because you're the Judge. And then —
THE COURT: I'll tell you what? When this is all over, I'm sure [your lawyer] will give you a copy or the address of the Judicial Commission.
THE DEFENDANT: Oh, I got it already.
THE COURT: And you can file your Complaint as to me.
THE DEFENDANT: I definitely will.
THE COURT: Beyond that, I've had enough.

¶ 10. When the trial court continued its sentencing analysis, it apologized: "I want the record to reflect . . . [that] I do want on the record to apologize for the statement that I made that he's a piece of garbage because that is not something that is judicial." The trial court sentenced Pirtle "to the Wisconsin State Prison System for life. He will not be eligible for extended [221]*221supervision." Pirtle filed a motion for postconviction relief, claiming the trial court was biased.

¶ 11. In the order denying his motion, the trial court admitted that its "piece of garbage" comment was not appropriate, but reiterated that it:

[D]id not harbor any feelings of bias or prejudice against the defendant during the trial or sentencing proceedings.... The defendant was facing a mandatory life sentence for his crime. The only determination for the court to make was whether he would be eligible for release to extended supervision. The court considered the parties' sentencing arguments and the defendant's statement.

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Cite This Page — Counsel Stack

Bluebook (online)
2011 WI App 89, 799 N.W.2d 492, 334 Wis. 2d 211, 2011 Wisc. App. LEXIS 353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pirtle-wisctapp-2011.